- A South African court has ruled that same sex marriages, according to the constitution, should be treated and recognised in the same way as marriages between a man and a woman. While the common law still has to be changed, South Africa's government asks the judicial system for time to treat the issue politically.
South Africa's Supreme Court of Appeal yesterday ruled that same sex marriages should be legalised, while not itself legalising it. The Court found that the Marriage Act, which only approves of unions between a man and a woman, was discriminating on basis of sexual orientation. Such discrimination is explicitly banned in South Africa's constitution.
The court however found it had no mandate to change the Marriage Act on itself. This, according to an analysis of the judgement, should be left to South African lawmakers. The parliament however has been given an indirect order to reform the unconstitutional Marriage Act.
The majority ruling of the court was produced after a lengthy legal battle by a lesbian couple, demanding their right to be married. Marie Fourie (53) and Cecilia Bonthuys (43) two years ago asked the Pretoria High Court to accept their application to marry. The court dismissed their application, referring to the Marriage Act, and the couple had to take their case to the Supreme Court of Appeal.
The majority of the court's judges agreed to the couple's constitutional right to get married and urged the government to reform the discriminating Marriage Act. One dissenting judge, while agreeing to the couple's constitutional rights, however said South African lawmakers first should be given sufficient time to reform common laws before the judgement was put in force.
The South African government today reacted calmly to the ruling. The Department of Home Affairs said it wished to "clarify its position on the matter," while emphasising that the government "respects the right to dignity and equality as enshrined in the Constitution of the country."
The Department nevertheless asked for more time to prepare possible law reforms, "given the sensitivity around the issue." The South African Law Reform Commission "should be afforded space and time to finalise its report on same sex marriages," the Department added.
If the Marriage Act indeed is changed in line with yesterday's judgement, South Africa will become the third country worldwide to introduce full-fledged same sex marriages, following the Netherlands and Belgium. Spain is to introduce gay marriages next year. Several countries further have arrangements for same sex couples that are very similar to marriage.
South Africa already is the first and only country in the world prohibiting discrimination on the basis of sexual orientation in its constitution. Two years ago, this led to a court ruling giving gay couples the right to adopt children - a right currently only paralleled in Sweden, the Netherlands and Belgium.
While the legal situation for homosexuals in South Africa is one of the most favourable worldwide, acceptance of gay and lesbian practice is very limited in the South African population. A recent study demonstrated that a large majority of South Africans strongly rejected homosexuality.
This popular rejection of homosexuality is not reflected in the political parties represented in South Africa's parliament. The ruling ANC party today welcomed the ruling and promised a debate within the party. The major opposition party, the Democratic Alliance (DA) did not want to take a stand in this "moral issue".
Only the African Christian Democratic Party (ACDP), which is not represented in parliament, yesterday condemned the court ruling on same sex marriages in a strong-worded statement, expressing its "extreme disappointment". ACDP spokesman Steve Swart said "history, nature, social science, anthropology, religion and theology" agreed marriage was "a life-long union of male and female for the purpose of creating stable families."
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